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EXHIBIT 10.5
EXECUTIVE SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT is made as of November 10, 1997
by and between the persons named on Schedule A hereto (the "Purchasers"), and
Airxcel Holdings, Inc., a Delaware corporation (the "Company") pursuant to
Section 5.8 of an Asset Purchase Agreement among Crispaire Corporation as
Seller, and Airxcel, Inc. and Airxcel Holdings, Inc. with an effective date of
October 17, 1997 (the "Asset Purchase Agreement").
WHEREAS each of the Purchasers agrees to purchase from the Company
the number of shares of Series A Preferred Shares, par value $0.01 per share,
and the number of shares of Class A Common Stock par value $0.01 per share set
forth opposite such Purchaser's name on Schedule A (together the "Securities").
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties to this agreement agree as follows:
SECTION 1 DEFINITIONS. When used in this Agreement:
"Acquisition" means the transactions contemplated by the Asset
Purchase Agreement and the Related Documents referred to therein.
"Governmental Body" means any government entity, department, agency
or political subdivision of any federal, state, local or municipal government.
"Parties" means the Company and the Purchasers.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization, or a government entity (or any department, agency or political
subdivision thereof.)
"Securities Act" means the Securities Act of 1933, as amended.
"Stockholders Agreement Amendment" means the Stockholders Agreement
Amendment No. 1 dated the date hereof among Airxcel Holdings, Inc. and its
stockholders.
"Subsidiary" means, with respect to any Person, any corporation of
which in excess of 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether any other class or classes of capital stock of such
corporation may have such voting power by reason of the happening of any
contingency) is directly or indirectly owned by such Person and/or one or more
Subsidiaries of such Person.
SECTION 2 SALE AND PURCHASE OF SECURITIES.
2.1 Authorization. On or prior to the Closing Date (as defined
herein), the Company shall have authorized the issuance and sale of the
Securities to the Purchasers.
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2.2 Sale of Securities. Subject to the terms and conditions of this
Agreement each of the Purchasers agrees to purchase from the Company, and the
Company agrees to sell to each such Purchaser the Securities set forth opposite
such Purchaser's name on Schedule A, for the aggregate purchase price set forth
opposite such Purchaser's name on Schedule A (the "Purchase Price").
SECTION 3 CLOSING.
3.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxxxx & Xxxxx,
Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, at 10:00
a.m. local time, on the date on which the Closing (as defined in the Asset
Purchase Agreement) occurs (the "Closing Date").
3.2 Closing Deliveries. Subject to the terms and conditions of this
Agreement, the Parties agree to consummate the following transactions (the
"Closing Transactions") on the Closing Date:
(a) The Company shall deliver to each Purchaser stock certificates
representing the Securities purchased by such Purchaser;
(b) Each Purchaser shall pay to the Company the Purchase Price
payable by such Purchaser by wire transfer of immediately available funds to an
account designated by the Company or by such other method of payment as the
Company and any Purchaser shall mutually agree;
(c) The Purchasers shall execute and deliver to the Company the
Stockholders Agreement Amendment.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a material
inducement to the Purchasers to enter into this Agreement and purchase the
Securities, the Company hereby represents and warrants to the Purchasers as
follows. Each of the representations and warranties will be deemed repeated by
the maker thereof on the Closing Date by reference to the facts and
circumstances then existing.
4.1 Organization and Corporate Power. The Company is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and is qualified to do business in every jurisdiction in which its ownership of
property or conduct of business requires it to qualify. The Company has all
requisite corporate power and authority to carry out the transactions
contemplated by this Agreement.
4.2 Authorization; No Breach. The execution, delivery and
performance of this Agreement has been duly authorized by the Company. This
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms. The execution and delivery by the Company of this
Agreement, the offering, sale and issuance of the Securities hereunder and the
fulfillment of and compliance with the respective terms hereof and thereof by
the Company, do not and shall not (i) conflict with or result in a breach of the
terms, conditions or provisions of, (ii) constitute a default under, (iii)
result in the creation of any lien, security interest, charge or encumbrance
upon the Company's capital stock or assets pursuant to, (iv) give any third
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party the right to modify, terminate or accelerate any obligation under, (v)
result in a violation of, or (vi) require any authorization, consent, approval,
exemption or other action by or notice to any court or administrative or
Governmental Body pursuant to, the charter or bylaws of the Company, or any law,
statute, rule or regulation to which the Company is subject, or any agreement,
instrument, order, judgment or decree to which the Company is subject.
4.3 Capitalization of Company. The authorized, issued and
outstanding capital stock of Company immediately after giving effect to the
Acquisition is and will be as set forth on Schedule 4.3.
SECTION 5 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. As a material
inducement to the Company to enter into this Agreement and issue the Securities
to the Purchasers, each Purchaser individually represents and warrants (with
respect to such individual Purchaser only) to the Company as follows. Each of
the representations and warranties will be deemed repeated by the maker thereof
on the Closing Date by reference to the facts and circumstances then existing.
5.1 Binding. The execution, delivery and performance of this
Agreement is within the capacity of the Purchaser and does not and will not
conflict with, violate or cause a breach of any agreement, contract or
instrument to which the Purchaser is a party or any judgment, order or decree to
which the Purchaser is subject. Upon execution, this Agreement will constitute a
valid and binding obligation of the Purchaser enforceable against the Purchaser
in accordance with its terms.
5.2 Investment. (a) The Securities will be acquired for the
Purchaser's own account and not with a view to, or intention of, distribution
thereof in violation of the Securities Act or any applicable state securities
laws and will not be disposed of in contravention of the Securities Act or any
applicable state securities laws.
(b) The Purchaser has knowledge of and has had access to
information concerning the business, financial condition, properties, operations
and prospects of the Company, is sophisticated in financial matters, is able to
evaluate the risks and benefits of the investment in the Securities, and has
determined that such investment in the Securities is suitable for the Purchaser,
based upon the Purchaser's financial situation and needs, as well as the
Purchaser's other securities holdings.
(c) The Purchaser is able to bear the economic risk of the
Purchaser's investment in the Securities for an indefinite period of time and
the Purchaser understands that the Securities have not been registered under the
Securities Act and cannot be sold unless subsequently registered under the
Securities Act or an exemption from such registration is available. The
Purchaser further understands that the Securities are subject to certain
restrictions set forth in the Stockholders Agreement as amended by the
Stockholders Agreement Amendment.
(d) The Purchaser has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Securities and has had full access to such other information concerning the
Company as the Purchaser has requested.
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(e) The Purchaser acknowledges that: Rule 144 under the
Securities Act is not available for resale of the Securities by him because the
Company does not satisfy certain conditions of that Rule; for so long as such
Rule is not available, any resale or other transfer of such Securities under
circumstances in which the seller or the person through whom the sale is made
may be deemed to be an underwriter, as that term is used in the Securities Act,
may require compliance with some other exemption under the Securities Act or the
rules and regulations of the Securities and Exchange Commission; and any resale
or other transfer of such Securities at such time in the future as Rule 144 may
be available which is made in reliance upon Rule 144 can be made only in limited
amounts in accordance with the terms and conditions of said Rule (including the
fact that such Securities must be held for minimum periods of time).
(f) No commission, fee or other remuneration is to be paid or
given, directly or indirectly, to any Person for soliciting the Purchaser to
purchase the Securities.
5.3 Employee Relationship. As an inducement to the Company to issue
the Securities to the Purchaser, and as a condition thereto, the Purchaser
acknowledges and agrees that neither the issuance of the Securities to the
Purchaser nor any provision contained herein shall entitle the Purchaser to
remain in the employment of the Company and its Subsidiaries or affect any
rights of the Company to terminate the Purchaser's employment. This Agreement
shall not impair the rights of any Purchaser under any written employment
contract between such Purchaser and the Company, or the rights of any Purchaser
under the Stockholders Agreement Amendment.
SECTION 6 MISCELLANEOUS PROVISIONS.
6.1 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
6.2 Entire Agreement. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
6.3 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the Company and the Purchasers.
6.4 Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
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6.5 Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, mailed by first class mail
(postage prepaid and return receipt requested) or sent by reputable overnight
courier service (charges prepaid) to the recipient at the address below
indicated:
To the Company:
Airxcel Holdings, Inc.
0000 Xxxxx Xx. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
With a copy to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
To the Purchasers:
Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxx Xxxxxxx
000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxxxx
0000 Xx. Xxxxx Xxxx
Xxxxxxx, XX 00000
X.X. Xxxxxxx, Xx.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or sent or, if mailed, five days after deposit in the U.S. mail.
6.6 Remedies. The Purchasers shall have all rights and remedies set
forth in this Agreement and the Certificate of Incorporation and all rights and
remedies which the Purchasers have been granted at any time under any other
agreement or contract and all of the rights which the
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Purchasers have under any law. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any Person having any rights under this Agreement may in
its sole discretion apply to any court of law or equity of competent
jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
6.7 Governing Law. The corporate laws of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed and construed in accordance
with the domestic laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
6.8 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
AIRXCEL HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
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XXXXXX X. XXXXX
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XXXXX X. XXXXXXX
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X.X. XXXXXXX, XX.
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XXXX XXXXXXX
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SCHEDULE A
Class A
Name Class A Common Preferred Purchase Price
------------------ -------------- ------------- --------------
Xxxxxx X. Xxxxx 30,836.497 737,704.92 $2,250,000.00
Xxxxx Xxxxxxx 6,852.555 163,934.43 $500,000.00
X.X. Xxxxxxx, Xx. 3,426.277 81,967.21 $250,000.00
Xxxx Xxxxxxx 685,256 16,393.44 $50,000.00
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TOTALS 41,800.585 1,000,000.00 $3,050,000.00
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